Charles Sumner his complete works volume 17 of 20 by Charles Sumner

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Title: Charles Sumner; his complete works, volume 17 (of 20)

Author: Charles Sumner

Editor: George Frisbie Hoar

Release Date: November 2, 2015 [EBook #50370]

Language: English

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Hamilton Fish

HAMILTON FISH

Cover page

Copyright, 1880,

BY

FRANCIS V. BALCH, Executor.

Copyright, 1900,

BY

LEE AND SHEPARD.

Statesman Edition.

Limited to One Thousand Copies.

Of which this is

No. Extra

Norwood Press:

Norwood, Mass., U.S.A.

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CONTENTS OF VOLUME XVII.

PAGE

Cheap Ocean Postage. Resolution in the Senate, December 7, 1868
1

The Late Hon. Thaddeus Stevens, Representative of Pennsylvania. Remarks in the Senate on his Death,

December 18, 1868
2

Claims of Citizens in the Rebel States. Speeches in the Senate, January 12 and 15, 1869
10

Tribute to Hon. James Hinds, Representative of Arkansas. Speech in the Senate, January 23, 1869
32

Powers of Congress to Prohibit Inequality, Caste, and Oligarchy of the Skin. Speech in the Senate, February

5, 1869
34

Claims on England,—Individual and National. Speech on the Johnson-Clarendon Treaty, in Executive Session

of the Senate, April 13, 1869
53

Locality in Appointment to Office. Remarks in the Senate, April 21, 1869
94

National Affairs at Home and Abroad. Speech at the Republican State Convention in Worcester,

Massachusetts, September 22, 1869
98

The Question of Caste. Lecture delivered in the Music Hall, Boston, October 21, 1869
131

Currency. Remarks in the Senate, on introducing a Bill to amend the Banking Act, and to promote the Return

to Specie Payments, December 7, 1869
184

Colored Physicians. Resolution and Remarks in the Senate, on the Exclusion of Colored Physicians from the

Medical Society of the District of Columbia, December 9, 1869
186

The Late Hon. William Pitt Fessenden, Senator of Maine. Remarks in the Senate on his Death, December 14,

1869
189

Cuban Belligerency. Remarks in the Senate, December 15, 1869
195

Admission of Virginia to Representation in Congress. Speeches in the Senate, January 10, 11, 12, 13, 14, 19,

21, 1870
204

Financial Reconstruction and Specie Payments. Speeches in the Senate, January 12, 26, February 1, March 2,

10, 11, 1870
234

Major-General Nathanael Greene, of the Revolution. Speech in the Senate, on the Presentation of his Statue,

January 20, 1870
299

Personal Record on Reconstruction with Colored Suffrage. Remarks in the Senate, January 21 and February

10, 1870
303

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W

CHEAP OCEAN POSTAGE.

RESOLUTION IN THE SENATE, DECEMBER 7, 1868.

hereas the inland postage on a letter throughout the United States is three cents, while the ocean postage on a
similar letter to Great Britain, under a recent convention, is twelve cents, and on a letter to France is thirty cents,

being a burdensome tax, amounting often to a prohibition of foreign correspondence, yet letters can be carried at less
cost on sea than on land; and whereas, by increasing correspondence, and also by bringing into the mails mailable
matter often now clandestinely conveyed, cheap ocean postage would become self-supporting; and whereas cheap
ocean postage would tend to quicken commerce, to diffuse knowledge, to promote the intercourse of families and
friends separated by the ocean, to multiply the bonds of peace and good-will among men and nations, to advance the
progress of liberal ideas, and thus, while important to every citizen, it would become the active ally of the merchant, the
emigrant, the philanthropist, and the friend of liberty: Therefore

Be it resolved, That the President of the United States be requested to open negotiations with the European powers,

particularly with Great Britain, France, and Germany, for the establishment of cheap ocean postage.

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M

THE LATE HON. THADDEUS STEVENS, REPRESENTATIVE OF

PENNSYLVANIA.

REMARKS IN THE SENATE ON HIS DEATH, DECEMBER 18, 1868.

R. PRESIDENT,—The visitor to the House of Commons, as he paces the vestibule, stops with reverence before
the marble statues of men who for two centuries of English history filled that famous chamber. There are twelve in

all, each speaking to the memory as he spoke in life, beginning with the learned Selden and the patriot Hampden, with
Falkland so sweet and loyal, Somers so great as defender of constitutional liberty, and embracing in the historic group
the silver-tongued Murray, the two Pitts, father and son, masters of eloquence, Fox, always first in debate, and that
orator whose speeches contribute to the wealth of English literature, Edmund Burke.

In the lapse of time, as our history extends, similar monuments will illustrate the approach to our House of

Representatives, arresting the reverence of the visitor. If our group is confined to those whose fame has been won in the
House alone, it will be small; for members of the House are mostly birds of passage, only perching on the way to
another place. Few remain so as to become identified with the House, or their service there is forgotten in the blaze of
service elsewhere,—as was the case with Madison, Marshall, Clay, Webster, and Lincoln. It is not difficult to see who
will find a place in this small company. There must be a statue of Josiah Quincy, whose series of eloquent speeches is
the most complete of our history before Webster pleaded for Greece,—and also a statue of Joshua R. Giddings, whose
faithful championship of Freedom throughout a long and terrible conflict makes him one of the great names of our
country. And there must be a statue of Thaddeus Stevens, who was perhaps the most remarkable character identified
with the House, unless we except John Quincy Adams; but the fame of the latter is not of a Representative alone, for he
was already illustrious from various service before he entered the House.

All of these hated Slavery, and labored for its overthrow. On this account they were a mark for obloquy, and were

generally in a minority. Already compensation has begun. As the cause they upheld so bravely is exalted, so is their
fame. By the side of their far-sighted, far-reaching, and heroic efforts, how diminutive is all that was done by others at
the time! How vile the spirit that raged against them!

Stevens was a child of New England, as were Quincy and Adams; but, after completing his education, he found a

home in Pennsylvania, which had already given birth to Giddings. If this great central State can claim one of these
remarkable men by adoption only, it may claim the other by maternity. Their names are among its best glories.

Two things Stevens did for his adopted State, by which he repaid largely all her hospitality and favor. He taught her

to cherish Education for the People, and he taught her respect for Human Rights. The latter lesson was slower learned
than the former. In the prime of life, when his faculties were in their highest vigor, he became conspicuous for earnest
effort, crowned by most persuasive speech, whose echoes have not yet died away, for those Common Schools, which,
more even than railways, are handmaids of civilization, besides being the true support of republican government. His
powerful word turned the scale, and a great cause was won. This same powerful word was given promptly and without
hesitation to that other cause, suffering then from constant and most cruel outrage. Here he stood always like a pillar.
Suffice it to say that he was one of the earliest of Abolitionists, accepting the name and bearing the reproach. Not a
child in Pennsylvania, conning a spelling-book beneath the humble rafters of a village school, who does not owe him
gratitude; not a citizen, rejoicing in that security obtained only in liberal institutions founded on the Equal Rights of All,
who is not his debtor.

When he entered Congress, it was as champion. His conclusions were already matured, and he saw his duty plain

before him. The English poet foreshadows him, when he pictures

“one in whom persuasion and belief

Had ripened into faith, and faith become
A passionate intuition.”[1]

Slavery was wrong, and he would not tolerate it. Slave-masters, brimming with Slavery, were imperious and lawless.
From him they learned to see themselves as others saw them. Strong in his cause and in the consciousness of power, he
did not shrink from encounter; and when it was joined, he used not only argument and history, but all those other
weapons by which a bad cause is exposed to scorn and contempt. Nobody said more in fewer words, or gave to
language a sharper bite. Speech was with him at times a cat-o’-nine-tails, and woe to the victim on whom the terrible
lash descended!

Does any one doubt the justifiableness of such debate? Sarcasm, satire, and ridicule are not given in vain. They have

an office to perform in the economies of life. They are faculties to be employed prudently in support of truth and justice.
A good cause is helped, if its enemies are driven back; and it cannot be doubted that the supporters of wrong and the
procrastinators shrank often before the weapons he wielded. Soft words turn away wrath; but there is a time for strong
words as for soft words. Did not the Saviour seize the thongs with which to drive the money-changers from the
Temple? Our money-changers long ago planted themselves within our temple. Was it not right to lash them away? Such
an exercise of power in a generous cause must not be confounded with that personality of debate which has its origin in

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nothing higher than irritability, jealousy, or spite. In this sense Thaddeus Stevens was never personal. No personal
thought or motive controlled him. What he said was for his country and mankind.

As the Rebellion assumed its giant proportions, he saw clearly that it could be smitten only through Slavery; and

when, after a bloody struggle, it was too tardily vanquished, he saw clearly that there could be no true peace, except by
new governments built on the Equal Rights of All. And this policy he urged with a lofty dogmatism as beneficent as
uncompromising. The Rebels had burned his property in Pennsylvania, and there were weaklings who attributed his
conduct to smart at pecuniary loss. How little they understood his nature! Injury provokes and sometimes excuses
resentment. But it was not in him to allow private grief to influence public conduct. The losses of the iron-master were
forgotten in the duties of the statesman. He asked nothing for himself. He did not ask his own rights, except as the
Rights of Man.

I know not if he could be called orator. Perhaps, like Fox, he were better called debater. And yet I doubt if words

were ever delivered with more effect than when, broken with years and decay, he stood before the Senate and in the
name of the House of Representatives and of all the people of the United States impeached Andrew Johnson, President
of the United States, of high crimes and misdemeanors in office. Who can forget his steady, solemn utterance of this
great arraignment? The words were few, but they will sound through the ages. The personal triumph in his position at
that moment was merged in the historic grandeur of the scene. For a long time, against opposition of all kinds, against
misconceptions of the law, and against apologies for transactions without apology, he had insisted on impeachment; and
now this old man, tottering to your door, dragged the Chief Magistrate of the Republic to judgment. It was he who did
this thing; and I should do poor justice to his life, if on this occasion I failed to declare my gratitude for the heroic deed.
His merit is none the less because other influences prevailed in the end. His example will remain forever.

In the House, which was the scene of his triumphs, I never heard him but once; and I cannot forget the noble

eloquence of that brief speech. I was there by accident just as he rose. He did not speak more than ten minutes, but
every sentence seemed an oration. With unhesitating plainness he arraigned Pennsylvania for her denial of equal rights to
an oppressed race, and, rising with the theme, declared that this State had not a republican government.[2] His
explicitness was the more striking because he was a Representative of Pennsylvania. Nobody, who has considered with
any care what constitutes a republican government, especially since the definition supplied by our Declaration of
Independence, can doubt that he was right. His words will live as the courageous testimony of a great character on this
important question.

The last earnest object of his life was the establishment of Equal Rights throughout the whole country by the

recognition of the requirement of the Declaration of Independence. I have before me two letters in which he records his
convictions, which are perhaps more weighty because the result of most careful consideration, when age had furnished
experience and tempered the judgment. “I have,” says he, “long, and with such ability as I could command, reflected
upon the subject of the Declaration of Independence, and finally have come to the sincere conclusion that Universal
Suffrage was one of the inalienable rights intended to be embraced in that instrument.” It is difficult to see how there can
be hesitation on this point, when the great title-deed expressly says that governments derive their just powers from the
consent of the governed. But this is not the only instance in which he was constrained by the habits of that profession
which he practised so successfully. A great Parliamentarian of France has said: “The more one is a lawyer, the less he is
a Senator,”—Plus on est avocat, moins on est Sénateur. If Stevens reached his conclusion slowly, it was because he
had not completely emancipated himself from that technical reasoning which is the boast of the lawyer rather than of the
statesman. The pretension that the power to determine the “qualifications” of voters embraced the power to exclude for
color, and that this same power to exclude for color was included in the asserted power of the States to make
“regulations” for the elective franchise, seems at first to have deceived him; as if it were not insulting to reason and
shocking to the moral sense to suppose that any unalterable physical condition, such as color of hair, eyes, or skin,
could be a “qualification,”—and as if it were not equally offensive to suppose, that, under a power to determine
“qualifications” or to make “regulations,” a race could be disfranchised. Of course this whole pretension is a technicality
set up against Human Rights. Nothing can be plainer than that a technicality may be employed in favor of Human Rights,
but never against them. Stevens came to his conclusion at last, and rested in it firmly. His final aspiration was to see it
prevail. He had seen much for which he had striven embodied in the institutions of his country. He had seen Slavery
abolished. He had seen the freedman of the National Capital lifted to equality of political rights by Act of Congress; he
had seen the colored race throughout the whole land lifted to equality of civil rights by Act of Congress. It only
remained that he should see them throughout the whole land lifted to the same equality in political rights; and then the
promises of the Declaration of Independence would be all fulfilled. But he was called away before this final triumph. A
great writer of Antiquity, a perpetual authority, tells us that “the chief duty of friends is not to follow the departed with
idle lamentation, but to remember their wishes and to execute their commands.”[3] These are the words of Tacitus. I
venture to add that we shall best honor him we now celebrate, if we adopt his aspiration and strive for its fulfilment.

It is as Defender of Human Rights that Thaddeus Stevens deserves homage. Here he is supreme. On other questions

he erred. On the finances his errors were signal. But history will forget these and other failings, as it bends with
reverence before the exalted labors by which humanity has been advanced. Already he takes his place among illustrious
names which are the common property of mankind. I see him now, as so often during life. His venerable form moves
slowly and with uncertain steps; but the gathered strength of years is in his countenance, and the light of victory on his
path. Politician, calculator, timeserver, stand aside! A hero-statesman passes to his reward.

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M

CLAIMS OF CITIZENS IN THE REBEL STATES.

SPEECHES IN THE SENATE, JANUARY 12 AND 15, 1869.

R. PRESIDENT,—This discussion, so unexpectedly prolonged, has already brought us to see two things,—first,
the magnitude of the interests involved, and, secondly, the simplicity of the principle which must determine our

judgment. It is difficult to exaggerate the amount of claims which will be let loose to feed on the country, if you recognize
that now before us; nor can I imagine anything more authoritative than the principle which bars all these claims, except
so far as Congress in its bounty chooses to recognize them.

By the Report of the Committee on Claims[4] it appears that the house of Miss Sue Murphey, of Decatur, Alabama,

was destroyed, so that not a vestige remained, by order of the commander at that place, on the 19th March, 1864,
under instructions from General Sherman to make it a military post. It is also stated that Miss Murphey was loyal. These
are the important facts. Assuming the loyalty of the petitioner, which I have been led to doubt, the simple question is,
whether the Nation is bound to indemnify a citizen, domiciled in a Rebel State, for property in that State, taken for the
building of a fort by the United States against the Rebels.

Here it is proper to observe three things,—one concerning the petitioner, and two concerning the property taken:

first, that the petitioner was domiciled in a Rebel State, or, to use more technical language, in a State declared by public
proclamation to be in rebellion; secondly, that the property was situated within the Rebel State; and, thirdly, that the
property was taken under the necessities of war, and for the national defence. On these three several points there can
be no question. They are facts which have not been denied in this debate. Thus far I confine myself to a statement of
facts, in order to prepare the way for the consideration of the legal consequences.

Bearing in mind these facts, several difficulties which have been presented during this debate disappear. For instance,

a question was put by a learned Senator [Mr. Davis, of Kentucky] as to the validity of an imagined seizure of the
property of the eminent Judge Wayne, situated in the District of Columbia. But it is obvious that the facts in the imagined
case of the eminent judge are different from those in the actual case before us. Judge Wayne, unlike the petitioner, was
domiciled in a loyal part of the country; and his property, unlike that of the petitioner, was situated in a loyal part of the
country. This difference between the two cases serves to illustrate the position of the petitioner. Because property
situated in the District of Columbia and belonging to a loyal judge domiciled here could not be taken, it by no means
follows that property situated in a Rebel State and belonging to a person domiciled there can enjoy the same immunity.

Behind the fact of domicile, and the fact that the property was situated in a Rebel State, is that other fact, equally

incontrovertible, that it was taken in the exigencies of war. The military order under which the taking occurred declares
that “the necessities of the Army require the use of every building in Decatur,”—not merely the building in question, but
every building; and the Report of the Committee says that “General Sherman had previously issued an order to fortify
Decatur for a military post.” I might quote more to illustrate this point; but I quote enough. It is plain and indisputable
that the taking was under an exigency of war. To deny this is to assail the military order under which it was done, and
also the Report of the Committee.

Three men once governed the mighty Roman world. Three facts govern the present case, with the power of a

triumvirate,—the domicile of the petitioner, the situation of the property, and the exigency of war. If I dwell on these
three facts, it is because I am unwilling that either should drop out of sight; each is important. Together they present a
case which it is easy to decide, however painful the conclusion. And this brings me to the principle which I said at the
beginning was so simple. Indeed, let the facts be admitted, and it is difficult to see how there can be any question in the
present case. But the facts, as I have stated them, are indubitable.

On these facts two questions arise: first, as to the rule of International Law applicable to property of persons

domiciled in an enemy country; and, secondly, as to the applicability of this rule to the present case. Of the rule there
can be no question; its applicability is sustained by reason, and also by authority from which there can be no appeal.

In stating and enforcing the rule I might array writers, precedents, and courts; but I content myself with a paragraph

from a writer who in expounding the Laws of War is perhaps the highest authority. I refer to the Dutch publicist of the
last century, Bynkershoek, whose work is always quoted in the final resort on these questions. This great writer
expresses himself as follows:—

“Could it be doubted whether under the name of enemies may be understood also our friends

who having been conquered are with the enemy, their city perhaps being occupied by him?… I
should think that they also were to be so understood, certainly as regards goods which they
have under the government of the enemy.… I know upon what ground others say the contrary,
—namely, that our friends, although they are with the enemy, have no spirit of hostility to us; for
that it is not of their free will that they are there, and that it is only from the animus that the case

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is to be judged. But the case does not depend upon the animus alone; because neither are all
the rest of our enemy’s subjects, at any rate very few of them, carried away by a spirit of
hostility to us; but it depends upon the right by which those goods are with the enemy, and upon
the advantage which they afford him for our destruction.”[5]

Nothing could be stronger in determining the liability from domicile. Its sweeping extent, under the exigency of war, is

proclaimed by this same writer in words of peculiar weight:—

“Since it is the condition of war that enemies are despoiled and proscribed as to every right, it

stands to reason that everything found with the enemy changes its owner and goes to the
Treasury.… If we follow the mere Law of War, even immovable property may be sold and its
price turned into the Treasury, as in the case of movable property.”[6]

Here is an austere statement; but it was adopted by Mr. Jefferson as a fundamental principle in his elaborate letter to

the British Minister, vindicating the confiscation of the property of Loyalists during the Revolution.[7] It was the corner-
stone of his argument, as it has since been the corner-stone of judicial decisions. To cite texts and precedents in its
support is superfluous. It must be accepted as the rule of International Law.

The rule, as succinctly expressed, is simply this,—that the property of persons domiciled in an enemy country is liable

to seizure and capture without regard to the alleged friendly or loyal character of the owner.

Unquestionably there are limitations imposed by humanity which must not be transcended. A country must not be

wasted, or buildings destroyed, unless under some commanding necessity. This great power must not be wantonly
employed. Men must not become barbarians. But, if, in the pursuit of the enemy, or for purposes of defence, property
must be destroyed, then by International Law it can be done. This is the rule. Vattel, while pleading justly and with
persuasive examples for the preservation of works of art, such as temples, tombs, and structures of remarkable beauty,
admits that even these may be sacrificed:—

“If for the operations of war, to advance the works in a siege, it is necessary to destroy

edifices of this nature, one has undoubtedly the right to do so. The sovereign of the country, or
his general, destroys them indeed himself, when the necessities or the maxims of war invite
thereto. The governor of a besieged city burns its suburbs, to prevent the besiegers from
obtaining a lodgment therein. Nobody thinks of blaming him who lays waste gardens, vineyards,
orchards, in order to pitch his tent and intrench himself there.”[8]

This same rule is recognized by Manning, in his polished and humane work, less frequently quoted, but entitled

always to great respect. This interesting writer expresses himself as follows:—

“It is clearly a belligerent’s right to destroy the enemy’s property as far as necessary in

making fortifications.… Destruction of the enemy’s property is justifiable as far as
indispensable for the purposes of warfare, but no further.”[9]

With the limitations which I have tried to exhibit, the rule is beyond question in the relations between nations. Do you

call it harsh? Undoubtedly it is so. It is war, which from beginning to end is terrible harshness. Without the incidents
sanctioned by this rule war would be changed, so that it would be no longer war. It was such individual calamities that
Shakespeare had in mind, when he spoke of “the purple testament of bleeding war”; and it was such which entered into
the vision of that other poet, when, in words of remarkable beauty, he pictured, by way of contrast, the blessings of
peace:—

“Straight forward goes

The lightning’s path, and straight the fearful path
Of the cannon-ball. Direct it flies, and rapid,
Shattering that it may reach, and shattering what it reaches.
My son! the road the human being travels,
That on which blessing comes and goes, doth follow
The river’s course, the valley’s playful windings,
Curves round the cornfield and the hill of vines,
Honoring the holy bounds of property;
And thus, secure, though late, leads to its end.”[10]

It only remains now to show that this rule of International Law is applicable to the present case. Of course, our late

war was not between two nations; therefore it was not strictly international. But it was between the National
Government, on one side, and a Rebellion which had become “territorial” in character, with such form and body as to
have belligerent rights on land. Mark the distinction, if you please; for I have always insisted, and still insist, that
complete belligerency on land does not imply belligerency on the ocean. As there is a dominion of the land, so there is a
dominion of the ocean; and as there is a belligerency of the land, so there is also a belligerency of the ocean. Therefore,
while denying to our Rebels belligerent rights on the ocean, I have no hesitation with regard to them on the land. But just
in proportion as these are admitted, is the rule of International Law made applicable to the present case.

Against our Rebels the Nation had two sources of power and two arsenals of rights,—one of these being the powers

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and rights of sovereignty, and the other the powers and rights of war,—the former being determined by the
Constitution, the latter by International Law. The Nation might pursue a Rebel as traitor or as belligerent; but whether
traitor or belligerent, he was always an enemy. Pursuing him in the courts as traitor, he was justly entitled to all the
delays and safeguards of the Constitution; but it was otherwise, if he was treated as belligerent. Pursuing him in battle,
driving him from point to point, dislodging him from fortresses, expelling him from towns, pushing him back from our
advancing line, and then building fortifications against him,—all this was war; and it was none the less war because the
enemy was unhappily our own countryman. A new law supplied the rule for our conduct,—not the Constitution, with its
manifold provisions dear to the lover of Liberty, including the solemn requirement that nobody shall “be deprived of life,
liberty, or property without due process of law,” and then again that other requirement, that “private property shall not
be taken for public use without just compensation.” All these were silent while International Law prevailed. The
Rebellion had grown until it became a war; and as this war was among countrymen, it was a civil war. But the rule of
conduct in a civil war is to be found in the Law of Nations.

I do not stop to quote the familiar views of publicists, especially of Vattel, to the effect that in a civil war the two

parties are to be treated as “two different nations.”[11] Suffice it to say, that such is the judgment of all the authorities on
International Law. But I come directly to the decisions of our Supreme Court, which recognize the rule of International
Law as applicable to our civil war.

In the famous cases known as the Prize Cases, the Court expressly says:—

“All persons residing within this territory, whose property may be used to increase the

revenues of the hostile power, are in this contest liable to be treated as enemies, though not
foreigners.”[12]

Here is the rule of International Law applied directly to our civil war. In a later case the rule is applied with added

emphasis and particularity:—

“We must be governed by the principle of public law, so often announced from this bench as

applicable alike to civil and international wars, that all the people of each State or district in
insurrection against the United States must be regarded as enemies.”[13]

Thus, according to our highest tribunal, the rule in civil war and international war is the same. By another decision of

the Court, this same rule continues in force until the character of public enemy is removed by competent authority. On
this point the Court declares itself as follows, in the Alexander cotton case:—

“All the people of each State or district in insurrection against the United States must be

regarded as enemies, until, by the action of the Legislature and the Executive, or otherwise, that
relation is thoroughly and permanently changed.”[14]

If the present case is to be settled by authority, this is enough. Here is the Supreme Court solemnly recognizing the

rule of International Law, even to the extent of embracing under its penalties all the people of the hostile community,
without regard to their sentiments of loyalty. This is decisive. You cannot decree the national liability in the present case
without reversing these decisions. You must declare that the rule of International Law is not applicable to our civil war.
There is no ground for exception. You must reject the rule absolutely.

Do you say that its application is harsh? Of course it is. But again I say, this is war; or rather, it is rebellion which has

assumed the front of war. I do not make the rule. I have nothing to do with it. I take it as I find it, affirmed by great
authorities of International Law, and reaffirmed by the Supreme Court of the United States.

Here I might stop; for the conclusion stands on reason and authority, each unanswerable; but I proceed further in

order to relieve the case of all ambiguity. Of course instances may be adduced where compensation has been made to
sufferers from an army, but no case like the present. If we glance at these instances, we shall see the wide difference.

1. The first instance is where property is taken by the Nation, or its representative, within its own established

jurisdiction. Of course this is unlike that now before us. To cite it is only to perplex and mystify, not to instruct. Thus, a
Senator [Mr. Willey, of West Virginia] has adduced well-known words from Vattel on the question, “Whether subjects
should be indemnified for damages sustained in war,” “as when a field, a house, or a garden, belonging to a private
person, is taken for the purpose of erecting on the spot a town-rampart, or any other piece of fortification.”[15] But this
authority is not applicable to the present case, where the claimant is not what Vattel calls a “subject,” and the property
was not within the established jurisdiction of the nation. It applies only to such cases as occurred during the War of
1812, where property was taken on the Canadian frontier or at New Orleans for the erection of a fortress,—or such a
case as that which formed one of the military glories of the Count Rochambeau, when at the head of the French forces
in our country. The story is little known, and therefore I adduce it now, as I find it in the Memoirs of Ségur, one of the
brilliant officers who accompanied the expedition.

The French squadrons were quitting their camp at Crompond, near the North River, in New York, on their way to

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embark for France. Their commander, fresh from the victory of Yorktown, was at the head of the columns, when a
simple citizen approached, and, tapping him slightly on the shoulder, said: “In the name of the law you are my prisoner.”
The glittering staff by which Count Rochambeau was surrounded broke forth with indignation, but the General-in-Chief
restrained their impatience, and, smiling, said to the American citizen: “Take me away with you, if you can.” “No,”
replied the simple representative of the law, “I have done my duty, and your Excellency may proceed on your march, if
you wish to set justice at defiance. Some of your soldiers have cut down several trees, and burnt them to make their
fires. The owner of them claims an indemnity, and has obtained a warrant against you, which I have come to execute.”
The Count, on hearing this explanation, which was translated by one of his staff, gave bail, and at once directed the
settlement of the claim on equitable grounds. The American withdrew, and the French squadrons, which had been
arrested by a simple constable, proceeded on their march. This interesting story, so honorable to our country and to the
French commander, is disfigured by the end, showing extortion on the part of the claimant. A judgment by arbitration
fixed the damages at four hundred dollars, being less than the commander had at once offered, while the claimant
demanded no less than three thousand dollars.[16]

Afterward, in the National Assembly of France, when that great country began to throb with republican life, this

instance of submission to law was mentioned with pride.[17] But though it cannot lose its place in history, it cannot furnish
a precedent of International Law. Besides being without any exigency of defence, the trespass was within our own
jurisdiction, in which respect it differed precisely from the case on which we are to vote. I adduce it now because it
serves to illustrate vividly the line of law.

2. Another instance, which I mention in order to put it aside, is where an army in a hostile country has carefully

paid for all its supplies. Such conduct is exceptional. The general rule was expressed by Mr. Marcy, during our war
with Mexico, when he said that “an invading army has the unquestionable right to draw its supplies from the enemy
without paying for them, and to require contributions for its support,” that “the enemy may be made to feel the weight of
the war.”[18] But General Halleck, after quoting these words, says that “the resort to forced contributions for the support
of our armies in a country like Mexico, under the particular circumstances of the war, would have been at least
impolitic, if not unjust; and the American generals very properly declined to adopt, except to a very limited extent, the
mode indicated.”[19] According to this learned authority, it was a question of policy rather than of law.

The most remarkable instance of forbearance, under this head, was that of the Duke of Wellington, as he entered

France with his victorious troops, fresh from the fields of Spain. He was peremptory that nothing should be taken
without compensation. His order on this occasion will be found at length in Colonel Gurwood’s collection of his
“Dispatches.”[20] His habit was to give receipts for supplies, and ready money was paid in the camp. The British
historian dwells with pride on the conduct of the commander, and records the astonishment with which it was regarded
by both soldiers and peasantry, who found it so utterly at variance with the system by which the Spaniards had suffered
and the French had profited during the Peninsular campaigns.[21] The conduct of the Duke of Wellington cannot be too
highly prized. It was more than a victory. I have always regarded it as the high-water mark of civilized war, so far as
war can be civilized. But I am obliged to add, on this occasion, that it was politic also. In thus softening the rigors of
war, he smoothed the way for his conquering army. In a dispatch to one of his generals, written in the spirit of the order,
he says, in very expressive language: “If we were five times stronger than we are, we could not venture to enter France,
if we cannot prevent our soldiers from plundering.”[22] It was in a refined policy that this important order had its origin.
Regarding it as a generous example for other commanders, and offering to it my homage, I must confess, that, as a
precedent, it is entirely inapplicable to the present case.

Putting aside these two several classes of cases, we are brought back to the original principle, that there can be no

legal claim to damages for property situated in an enemy country, and belonging to a person domiciled there, when
taken for the exigencies of war.

If the conclusion were doubtful, I should deem it my duty to exhibit at length the costly consequences from an

allowance of this claim. The small sum which you vote will be a precedent for millions. If you pay Miss Sue Murphey,
you must pay claimants whose name will be Legion. Of course, if justice requires, let it be done, even though the
Treasury fail. But the mere possibility of such liabilities is a reason for caution on our part. We must consider the present
case as if on its face it involved not merely a few thousands, but many millions. Pay it, and the country will not be
bankrupt, but it will have an infinite draft upon its resources. If the occasion were not too grave for a jest, I would say of
it as Mercutio said of his wound: “No, ’tis not so deep as a well, nor so wide as a church-door; but ’tis enough.”

If you would have a practical idea of the extent of these claims, be taught by the history of the British Loyalists, who

at the close of our Revolution appealed to Parliament for compensation on account of their losses. The whole number of
these claims was five thousand and seventy-two. The whole amount claimed was £8,026,045, or about thirty-eight
million dollars, of which the commissioners allowed less than half.[23] Our claimants would be much more numerous, and
the amount claimed vaster.

We may also learn from England something of the spirit in which such claimants should be treated. Even while

providing for them, Parliament refused to recognize any legal title on their part. What it did was in compassion,
generosity, and bounty,—not in satisfaction of a debt. Mr. Pitt, in presenting the plan which was adopted, expressly

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denied any right on grounds of “strict justice.” Here are his words:—

“The American Loyalists, in his opinion, could not call upon the House to make

compensation for their losses as a matter of strict justice; but they most undoubtedly had strong
claims on their generosity and compassion. In the mode, therefore, that he should propose for
finally adjusting their claims, he had laid down a principle with a view to mark this distinction.”[24]

In the same spirit Mr. Burke said:—

“Such a mode of compensating the claims of the Loyalists would do the country the highest

credit. It was a new and a noble instance of national bounty and generosity.”[25]

Mr. Fox, who was full of ardent sympathies, declared:—

“They were entitled to a compensation, but by no means to a full compensation.”[26]

And Mr. Pitt, at another stage of the debate, thus denied their claim:—

“They certainly had no sort of claim to a repayment of all they had lost.”[27]

So far as this instance is an example to us, it is only an incentive to a kindly policy, which, after prudent inquiry, and

full knowledge of the extent of these claims, shall make such reasonable allowance as humanity and patriotism may
require. There must be an inquiry not only into this individual case, but into all possible cases that may spring into being,
so that, when we act, it may be on the whole subject.

From the beginning of our national life Congress has been called to deal with claims for losses by war. Though new in

form, the present case belongs to a long list, whose beginning is hidden in Revolutionary history. The folio volume of
State Papers, now before me, entitled “Claims,” attests the number and variety. Even amid the struggles of the war, as
early as 1779, the Rev. Dr. Witherspoon was allowed $19,040 for repairs of the college at Princeton damaged by the
troops.[28] There was afterward a similar allowance to the academy at Wilmington, in Delaware, and also to the college
in Rhode Island. These latter were recommended by Mr. Hamilton, while Secretary of the Treasury, as “affecting the
interests of literature.”[29] On this account they were treated as exceptional. It will also be observed that they concerned
claimants within our own jurisdiction. But on a claim for compensation for a house burnt at Charlestown for the purpose
of dislodging the enemy, by order of the American commander at that point during the Siege of Boston, a Committee of
Congress in 1797 reported, that, “as Government has not adopted a general rule to compensate individuals who have
suffered in a similar manner, the Committee are of opinion that the prayer of this petition cannot be granted.”[30] At a
later day, however, after successive favorable reports, the claim was finally in 1833 allowed, and compensation made
to the extent of the estimated value of the property destroyed.[31]

In 1815 a claimant received compensation for a house at the end of the Potomac bridge, which was blown up to

prevent certain public stores from falling into the hands of the enemy;[32] and other claimants at Baltimore received
compensation for rope-walks burnt in the defence of the city.[33] The report of a committee in another case says that the
course of Congress “seems to inculcate that indemnity is due to all those whose losses have arisen from the acts of
our own Government, or those acting under its authority, while losses produced by the conduct of the enemy are
to be classed among the unavoidable calamities of war.”[34] This is the most complete statement of the rule which I find.

After the Battle of New Orleans the question of the application of this rule was presented repeatedly, and with

various results. In one case, a claim for “a quantity of fencing” used as fuel by troops of General Jackson was paid by
Congress; so also was a claim for damages to a plantation “upon which public works for the defence of the country
were erected.”[35] On the other hand, a claim for “an elegant and well-furnished house” which afforded shelter to the
British army and was therefore fired on with hot shot, also a claim for damage to a house and plantation where a battery
was erected by our troops, and on both of which claims the Committee, simultaneously with the two former, reported
favorably, were disallowed by Congress.[36] In a subsequent case both the report and action seem to have proceeded
on a different principle from that previously enunciated. At the landing of the enemy near New Orleans, the levee was
cut in order to annoy him. As a consequence, the plantation of the claimant was inundated, and suffered damages
estimated at $19,250. But the claim was rejected, on the ground that “the injury was done in the necessary operations
of war.”[37] Certainly this ground may be adopted in the present case, while it must not be forgotten that in all the
foregoing cases the claimants were citizens within our own jurisdiction, whose property had been used against a foreign
enemy.

The multiplicity of claims arising in the War of 1812 prompted an Act of Congress in 1816 for “the payment for

property lost, captured, or destroyed by the enemy.” In this Act it was, among other things, provided,—

“That any person, who, in the time aforesaid [the late war], has sustained damage by the

destruction of his or her house or building by the enemy, while the same was occupied as a
military deposit, under the authority of an officer or agent of the United States, shall be allowed
and paid the amount of such damage, provided it shall appear that such occupation was the
cause of its destruction.”[38]

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Two years later it was found, that, in order to obtain the benefits of this Act, people, especially on the frontier of the

State of New York, had not hesitated at “fraud, forgery, and perhaps perjury.”[39] Thereupon, the law, which by its
terms was limited to two years, and which it had been proposed to extend, was permitted to expire; and it is
accordingly now marked in our Statutes, “Obsolete.” But it is not without its lesson. It shows what may be expected,
should any precedent be adopted by Congress to quicken the claimants now dormant in the South. “It is the duty of a
good Government to attend to the morals of the people as an affair of primary concern.”[40] So said the Committee in
1818, recommending the non-extension of the Act. But this warning is as applicable now as then.

Among the claimants of the present day there are doubtless many of character and virtue. It is hard to vote against

them. But I cannot be controlled on this occasion by my sympathies. Everywhere and in every household there has been
suffering which mortal power cannot measure. Sometimes it is borne in silence and solitude; sometimes it is manifest to
all. In coming into this Chamber and asking for compensation, it invites comparison with other instances. If your
allowance is to be on account of merit, who will venture to say that this case is the most worthy? It is before us now for
judgment. But there are others, not now before us, where the suffering has been greater, and where, I do not hesitate to
say, the reward should be in proportion. This is an appeal for justice. Therefore do I say, in the name of justice, Wait!

January 15th, the same bill being under discussion, Mr. Sumner spoke as follows:—

There is another point, on which I forbore to dwell with sufficient particularity when I spoke before. It is this:

Assuming that this claimant is loyal, I honor her that she kept her loyalty under the surrounding pressure of rebellion. Of
course this was her duty,—nor more nor less. The practical question is, Shall she be paid for it? Had she been disloyal,
there would have been no proposition of compensation. As the liability of the Nation is urged on the single ground that
she kept her regard for the flag truly and sincerely, it is evident that this loyalty must be put beyond question; it must be
established like any other essential link of evidence. I think I do not err in supposing that it is not established in the
present case,—at least with such certainty as to justify opening the doors of the Treasury.

But assuming that in fact the loyalty is established, I desire to go further, and say that not only is the present claim

without any support in law, but it is unreasonable. The Rebel States had become one immense prison-house of Loyalty;
Alabama was a prison-house. The Nation, at every cost of treasure and blood, broke into that prison-house, and
succeeded in rescuing the Loyalists; but the terrible effort, which cost the Nation so dearly, involved the Loyalists in
losses also. In breaking into the prison-house and dislodging the Rebel keepers, property of Loyalists suffered. And
now we are asked to pay for this property damaged in our efforts for their redemption. Our troops came down to
break the prison-doors and set the captives free. Is it not unreasonable to expect us to pay for this breaking?

If the forces of the United States had failed, then would these Loyalists have lost everything, country, property, and

all,—that is, if really loyal, according to present professions. It was our national forces that saved them from this
sacrifice, securing to them country, and, if not all their property, much of it. A part of the property of the present
claimant was taken in order to save to her all else, including country itself. It was a case, such as might occur under
other circumstance...